Vicarious liability

Transfers liability from employee to employer Merely a mechanism For this to be proved, the employee must first

be proven liable of negligence

3 things The tortfeasor must be an employee of the

master The employee must have committed a tort The tort must have been committed in the

course of employment

Requirements

Employer has a deeper pocket Employer benefits from the act of emplyee Acts as a warning to train staff better

Rationale

Who is an employee

Mckenna J in ready mix concrete v minister of pension and national insurance

A contract of service exists if these three conditions are fulfilled. (i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master. (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient degree to make that other master. (iii) The other provisions of the contract are consistent with its being a contract of service.

Hospital authority- cassidy v minister of health The court considered the liability in negligence of the respondent for the

negligence of doctors employed by it. Held: The Ministry was liable for the negligence of doctors who were

employed by it on contracts of service. Denning LJ (dissenting) said that: ‘whenever they accept a patient for

treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves: they have no ears to listen through the stethoscope, and no hands to hold the surgeon’s knife. They must do it by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him.’ and ‘where a person is himself under a duty to use care, he cannot get rid of his responsibility by delegating the performance of it to someone else, no matter whether the delegation be to a servant under a contract of service or to an independent contractor under a contract for services.’

Special rule apply to four categories of

employment

The chief officer of police The owners of hackney carriages- london

hackney carriages act 1843, london and town police clause act 1847

Not for general employer of a qualified licensed ship pilot to the owner of a ship

Police act 1966, section 88

Imperial chemical industries v shatwell Where it was held that VL can only arise

where the employee has committed a tort

Employee must have committed a tort

Employee must have been acting within the

course of employment before the employer can be VL for his employee’s tort. A useful definition of a course of employment is provided by Salmond & Heuston

A master is not responsible for a wrongful act of an employee unless it is done in the course of his employment. It is deemed so if it either

A wrongful act authorised by the master A wrongful and unautorised mode of doing

something authorised by the master

Course of employment

Act authorised by employer although mode is

unautorised – century insurance co ltd v northern ireland road transport- smoking while delivering petrol

Negligent and careless act

Limpus v general omnibus- an unauthorised

act in an unauthorised manner ( driving bus for employer but engaging in race with competitors)

Conway v george wimpy- driver gives unauthorised lifts to passengers

Prohibition by employer

Frolic- an independent and new journey which

has nothing to do with the course of employment – storey v ashton

Whatman v pearson- employee who went home for lunch was held to be remain in course of employment

Contrast with Storey v ashton- defendant was not liable

when the employee went on a frolic to visit his brother-in-law

Frolics v detours

An employee can be vicariously liable for the

fraudulent and criminal actions by an employee – barwick v english joint stock bank

But If the servant had neither actual nor ostensible authority to perform the acts that cause the loss, then employee may not be held liable-slingsby v distric bank

Fraud

Where an employee has been entrusted with

the property of a third party by his employer and the employee steals the property, this is a mode, albeit a dishonest mode, of performing his duty of looking after the property- in morris v martin- held liable for fur coat stolen by employee

Theft

Servants crime in assault, the courts are

generally reluctant to impose a liability even if it is done due to the employment- not liable in keppel bus co ltd v sa’ad bin ahmad

However if it furthers employers interest, usually held liable- dyer v munday

Assault

Courts have adapted a strict view and

generally speaking, employer will not be liable

Intentional wrongful act